THE PRO-LIFE MOVEMENT AT (ALMOST) FIFTY: WHERE DO WE GO FROM HERE?

• Author: Linton, Paul Benjamin

In 1973, the United States Supreme Court decided Roe v. Wade, (1) holding that a pregnant woman may choose an abortion for any reason before viability, and for virtually any reason thereafter. Nineteen years later, in 1992, the Supreme Court, in Planned Parenthood v. Casey, (2) while rejecting the "trimester framework" of Roe, reaffirmed what it called the "essential" or "central" holding of Roe, that "[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability." (3)

Almost fifty years after Roe was decided, where does the pro-life movement go from here? The answer to that question, in turn, depends on the answers to five other questions. First, is the Supreme Court, as presently constituted, likely to reconsider Roe? Second, what is the "lay of the land" on pending direct challenges to Roe? Third, are direct challenges to Roe necessary to obtain an overruling decision? Fourth, what alternatives might be considered to direct challenges to Roe? Fifth, how does the interpretation of state constitutions affect the legal status of abortion?

IS THE SUPREME COURT LIKELY TO RECONSIDER ROE?

There is very little evidence that the Supreme Court, as presently constituted, would be willing to reconsider (and overrule) Roe, and much evidence that it is not prepared to do so. Only one of the Justices currently on the Court--Justice Thomas--has expressed the view that Roe should be overruled. (4) Although Justice Alito dissented in Whole Woman's Health v. Hellerstedt (5)--the Supreme Court's decision in 2016 striking down the Texas statutes requiring physicians performing abortions to have admitting privileges at nearby hospitals and abortion clinics to comply with regulations generally applicable to outpatient surgical facilities--he did not express any view on whether Roe should be overruled, nor, for that matter, did Chief Justice Roberts, who, along with Justice Thomas, joined his dissent (Justice Scalia had died several months before Hellerstedt was decided).

In December 2018, the Court refused to review two cases in which the Fifth Circuit and the Tenth Circuit affirmed preliminary injunctions against the attempts of Louisiana and Kansas to defund Planned Parenthood. (6) Justice Thomas, joined by Justice Alito and Justice Gorsuch, dissented from the denial of review. (7) The Court's denial of review is disturbing. If there is not a majority on the Court to uphold a State's effort to defund Planned Parenthood, why would anyone assume that there is a majority prepared to overrule Roe? It is possible, of course, that the Court may have denied review because of the procedural posture of the cases (seeking review of preliminary injunctions), but that is somewhat implausible because the threshold issue in both cases was whether the "choice-of-provider" language in the Medicaid Act authorizes a private right of action that may be brought under the Civil Rights Act, an issue that would not seem to require further development in the district court in order to be addressed by the Supreme Court. In any event, the Court may have another opportunity to revisit this issue once final judgments have been entered in those cases.

Another "warning sign" regarding Chief Justice Roberts was his decision to join the four liberal justices on the Court in granting a stay of the Fifth Circuit's judgment upholding Louisiana's physician admitting-privileges statute. (8) Agreeing to a stay does not necessarily reflect the Chief Justice's views on the merits, but it remains a concern, nevertheless. Justice Kavanaugh wrote a very circumspect dissent from the issuance of the stay, joined by Justices Thomas, Alito and Gorsuch. (9) The Court's opinion in the June Medical Services case should tell us much about Chief Justice Roberts and Justice Kavanaugh. Will the Court overrule Hellerstedt? Will the Court limit Hellerstedt to its facts? Will it distinguish Hellerstedt? Will it apply Hellerstedt? Or, alternatively, will the Court dispose of the case on standing grounds (whether the abortion clinics and physicians have third-party standing to represent the interests of their patients)?

And then there are two more recent indications that the Court is not prepared to revisit Roe. On May 28, 2019, the Court refused to review a decision of the Seventh Circuit striking down Indiana's law prohibiting discriminatory abortions (abortions sought because of the race, gender or disability of the unborn child). (10) No one dissented from the denial of certiorari, and no other Justice joined Justice Thomas' opinion concurring in the denial of certiorari in which he clearly telegraphed his own opinion regarding the constitutionality of the Indiana law. (11) If the Court will not review modest restrictions on the reasons for which abortions may be performed (restrictions which, in any event, could easily be circumvented in practice), why would anyone think that the Court would consider, much less uphold, a ban on all or most abortions throughout pregnancy?

Exactly one month after the Court refused to review the Indiana case, the Court also refused to review a decision of the Eleventh Circuit striking down Alabama's law prohibiting the performance of D&E (dilation and evacuation) abortions on live, unborn children. (12) As in Box, no one dissented from the denial of certiorari, and no other Justice joined Justice Thomas' opinion concurring in the denial of review in which, as in Box, he clearly expressed his view of the constitutionality of the Alabama law. (13) Once again, the question must be asked, if the Court will not review this law, which would affect only second-trimester abortions, why would anyone think the Court would consider, much less uphold, a ban on all or most abortions throughout pregnancy?

At the same time the Court denied Indiana's petition with respect to the ban on discriminatory abortions, the Court granted Indiana's petition with respect to the Indiana statute governing the disposal of fetal remains and summarily reversed the Seventh Circuit's judgment striking down that statute. (14) The significance of that action must be tempered, however, by the fact that Justices Breyer and Kagan joined that extremely brief opinion, which was careful to note that the plaintiffs in the case challenged the statute under the rational basis standard, not the more demanding "undue burden" standard generally applicable to abortion regulations. (15) It is doubtful that this "victory" provides any insight into how the Court might approach a challenge to Roe itself.

Justice Alito, based on his judicial philosophy and his writings, is likely to vote to overrule Roe in a case in which the issue is properly presented. It may be hoped that Justice Gorsuch would do so also. Justice Kavanaugh, however, gives one pause. In his confirmation hearings, then Judge Kavanaugh said, mistakenly, that Roe had been reaffirmed "many, many times," (16) when in reality, it has been reaffirmed only three times, (17) and the third time it was reaffirmed (in Casey), it was substantially modified. (18)

Justice Kavanaugh's testimony that the doctrine of stare decisis is rooted in the Judiciary Article of the Federal Constitution (Art. III), (19) is deeply concerning, because it places precedent on the same level as "getting it right" in interpreting the Constitution. (20) In support of this view of stare decisis, Judge Kavanaugh cited Federalist 78, authored by Alexander Hamilton. Federalist 78 is devoted to explaining and defending the judiciary article in the proposed Constitution and the section of the paper which Kavanaugh presumably had in mind was Hamilton's discussion of why conferring life time tenure upon federal judges poses no danger to the country. Hamilton wrote, "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. ..." (21)

Now, several things must be said about this. First, Hamilton may have been referring only to the obligation of lower courts to follow the precedents of higher courts (what is often referred to as "vertical stare decisis"), an entirely unobjectionable principle, not the obligation of a court to follow its own precedents ("horizontal stare decisis"). (22) Second, nothing in Art. III itself, by express language or necessary implication, embodies the doctrine of stare decisis (with respect to the Court's own precedents), which the Court has repeatedly characterized as a policy preference, (23) not a rule rooted in the Constitution itself. Third, Hamilton's discussion of the role of "precedents" cannot be divorced from English and American common law, under which courts have developed the law in the light of prior precedents, not bound by a written constitution, but one always subject to the control of, in England, Parliament, and, in America, state legislatures. (24) Courts, however, are bound by the Constitution, and Supreme Court interpretations of the Constitution "can be altered only by constitutional amendment or by overruling our prior decisions," (25) not by legislation. (26) Accordingly, stare decisis "is at its weakest when we interpret the Constitution. ..." (27) Fourth, even assuming that the doctrine of "stare decisis" (again, referring to the Court's own precedents) is rooted in Art. III of the Constitution, the doctrine itself provides no principled basis, much less any criteria, for determining when it is appropriate to depart from precedent. No justice, including Justice Kavanaugh, has ever taken the position that no precedent may be overruled. (28) So, in a sense, Justice Kavanaugh's belief that Art. III embodies the principle of stare decisis may not mean much of anything. And, of course, Justice Kavanaugh has joined opinions in...